36th  Congress,  )    HOUSE  OF  REPRESENTATIVES.    C   Report 
2c?  Session.      \  \    No.  58. 


MINORITY  REPORT. 

Mr.  Branch,  a  member  of  the  select  committee,  to  whom  was  referred 
the  message  of  the  President  of  the  8th  of  January,  by  leave  of  the 
House,  presents  the  reasons  of  his  non-concurrence  with  the  com- 
mittee in  recommending  the  passage  of  "a  bill  to  be  entitled  '  An 
act  further  to  provide  for  calling  forth  the  militia  of  the  United 
States  in  certain  cases.'  " 

The  bill  is  direct  and  explicit,  and  is  in  the  following  words : 

A  bill  to  be  entitled  "  An  act  further  to  provide  for  calling  forth 
the  militia  of  the  United  States  in  certain  cases." 

Be  it  enacted,  &c,  That  it  shall  be  lawful  for  the  President  of  the 
United  States,  whenever  and  as  often  as  in  his  opinion  it  shall  become 
necessary,  to  call  forth  the  militia  of  all  or  any  of  the  States  of  the 
United  States,  or  to  accept  the  services  of  volunteers  to  such  extent 
as  may  be  required  to  protect  and  defend  the  forts,  magazines,  arsenals, 
dock  yards,  navy  yards,  public  buildings,  or  other  property  of  the 
United  States,  and  to  recover  the  possession  of  any  such  forts,  maga- 
zines, arsenals,  dock  yards,  navy  yards,  public  buildings,  or  other 
property  of  the  United  States,  which  has  been,  or  may  hereafter  be, 
unlawfully  seized  or  taken  possession  of  by  any  combination  of  persons 
whatever.  And  the  provisions  of  "An  act  authorizing  the  employ- 
ment of  the  land  and  naval  forces  of  the  United  States  in  cases  of 
insurrections,"  approved  March  3,  1807,  and  all  existing  laws  and 
regulations  relating  to  the  actual  service  of  the  militia  of  the  United 
States,  shall  be  applicable  to  the  employment  of  the  same  under  the 
provisions  of  this  act. 

The  militia  force  thus  placed  at  the  disposal  of  the  President 
amounts,  by  the  latest  returns,  to  3,163,711  men,  and,  in  addition,  he 
can  accept  as  many  volunteers  at  home  or  from  abroad  as  the  money 
and  credit  of  the  government  can  command. 

The  bill  is  a  declaration  of  war  against  those  States  which,  having 
seceded,  have  taken  possession  of  the  forts  and  other  public  property 
within  their  limits  ;  for  the  President  will,  of  course,  construe  it  into 
an  unequivocal  expression  of  the  will  of  Congress  that  he  shall  forth- 
with proceed  to  recover  possession  by  the  use  of  warlike  means. 
Negotiations  are  eschewed,  and  perhaps  the  committee  would  consider 
it  an  impeachable  offence  for  the  President  or  any  other  executive 
officer  to  entertain  negotiations  on  the  subject.  Force  and  nothing 
but  force  can  be  thought  of  to  vindicate  the  national  honor  and  recover 
possession  of  the  national  property. 

If  the  President  should  for  a  moment  doubt  whether  Congress  is 
willing  to  permit  a  resort  to  milder  means  than  the  vigorous  applica- 
tion of  force,  that  doubt  will  be  removed  when  he  reflects  that  the 
committee  which  reports  this  bill  has  been  specially  charged  by  the 
House  to  inquire  and  report  whether  he  is  or  has,  at  any  time,  been 
holding  communication  with  the  seceding  States  on  this  and  kindred 


NO 


2  MILITIA    OF    THE   UNITED    STATES. 

subjects,  which   inquiry  either  looks  to  instituting  an  impeachment., 
or  has  no  legitimate  object  at  all. 

When  the  President  finds  himself  in  possession  of  the  whole  mili- 
tary resources  of  the  nation,  almost  without  limit  or  restriction,  he 
will  posses  an  amount  of  power  which  has  never  before  been  conferred 
on  any  man  in  America.  Our  beloved  Washington  never  received  from 
Congress  a  greater  mark  of  its  confidence,  and  in  the  darkest  days  of 
the  revolution,  and  the  brightest  days  of  his  transcendent  glory,  never 
received  at  its  hands  so  much  power  sustained  by  such  vast  physical 
forces.  The  incumbent  President,  who,  by  his  forbearance  and  modera- 
tion, has  done  so  much  to  keep  the  country  out  of  the  vortex  of  civil  war, 
might  be  safely  invested  with  much  power,  because  he  has  shown  that 
he  will  use  it  wisely  and  for  the  preservation  of  peace.  But  neither 
he  nor  any  other  human  being  ought  to  be  intrusted  with  so  much  as 
this  bill  proposes  to  confer.  Such  a  mark  of  confidence,  especially 
coming  from  those  who  have  not  generally  approved  the  principles  on 
which  he  has,  for  nearly  four  years,  administered  the  government, 
could  not  fail  to  be  gratifying  to  him  personally,  but  it  would  surely 
fill  his  mind  with  gloomy  forebodings  of  the  future  of  our  country. 
When  it  is  openly  proposed  in  Congress  by  one  individual  to  establish 
a  military  dictatorship,  and  under  a  feverish  excitement  captains  of 
armed  bands  excite  an  enthusiasm  in  the  breasts  oi  the  people,  of 
which  Washington,  during  his  seven  years  of  patient  endurance  and 
brave  suffering  in  the  cause  of  liberty,  was  never  the  object — when  he 
sees  throughout  one  half  the  Union  public  meetings  and  legislative 
bodies,  and  private  persons  who  do  not  themselves  expect  to  participate 
in  the  dangers  and  sufferings  of  war,  urging  measures  of  violence — 
and  when  he  sees  Congress  drawn  into  the  vortex  of  popular  excite- 
ment, and  under  the  same  morbid  passion  enacting  this  extraordinary 
law,  his  heart  will  be  grieved  at  the  decay  of  that  jealousy  of  power, 
and  especially  of  military  power,  which  made  us  a  free  people,  and 
which  alone  can  save  us  from  being  hurried  into  military  despotism 
"by  mobish  enthusiasm. 

Some  of  the  extraordinary  features  of  the  bill  will  be  brought  to 
the  attention  of  the  House. 

1.  There  is  no  limit  imposed  on  the  number  that  may  be  called 
into  service. 

The  only  precedent  for  this  is  in  the  act  of  May  23,  1798,  when  an 
invasion  by  the  revolutionary  government  of  France  was  apprehended. 
And  in  that  case  the  President  was  only  empowered  to  exercise  the 
authority,  "in  the  event  of  a  declaration  of  war  against  the  United 
States,  or  of  actual  invasion  of  their  territory  by  a  foreign  power,  or 
of  imminent  danger  of  such  invasion  discovered,  in  his  opinion,  to 
exist,  before  the  (then)  next  session  of  Congress."  The  urgent  need 
which  might  occur  during  the  recess,  and  the  short  duration  of  the 
authority,  (only  six  months,)  sufficiently  distinguish  that  from  the 
present  case.  In  all  other  cases  a  limit  as  to  numbers  has  been  pre- 
scribed, beyond  which  the  President  could  not  go,  whatever  might  be 
the  nature  or  the  imminency  of  the  danger. 

Under  the  provisions  of  this  bill  the  President  can,  at  his  discretion, 
call  into  the  field  every  individual  in  the  United  States  subject  to 


0 

r      v 


MILITIA   OF   THE   UNITED    STATES.  6 

military  duty.  He  may  do  more.  If  mercenaries  will  better  serve 
his  purposes  than  the  free-born  citizens  of  the  United  States,  instead 
of  calling  out  the  militia,  he  can  accept  the  services  of  as  many  Hes- 
sians and  Swiss  as  he  can  hire  to  volunteer  them. 

Let  it  not  be  forgotten  that  every  usurper  claims  that  he  is  "exe- 
cuting the  laws."  And  to  retain  or  to  regain  possession  of  the  public 
property  will  be  an  additional  and  generally  a  more  plausible  pretext 
than  executing  the  laws  for  keeping  an  obedient  army  in  service. 

It  is  obvious  that  when  the  Constitution  said  "Congress  shall  have 
the  power  to  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  Union,  to  suppress  insurrection  and  repel  invasion,"  it  meant 
that  Congress  should  continue  to  hold  and  exercise  the  power,  and  not 
by  a  few  lines  transfer  it  to  the  President,  to  be  exercised  by  him  with 
no  limit  or  restriction  except  his  discretion. 

2.  The  bill  embraces  in  its  provisions  all  kinds  of  property  claimed 
by  the  President  to  belong  to  the  United  States.  It  applies  to  an 
intrusion  on  the  public  lands  as  much  as  to  the  seizure  of  a  f3rt  or 
arsenal ;  to  a  horse  or  wagon  or  a  lot  of  ground  claimed  by  the  Presi- 
dent to  belong  to  the  United  States,  but  held  by  an  adverse  claimant 
on  a  bona  fide  claim  of  title,  just  as  much  as  to  a  ship-of-war  captured 
by  pirates.  It  releases  the  United  States  from  all  obligation  to  estab- 
lish its  claim  to  property  adversely  held  by  suit  in  court.  A  captain 
of  dragoons  is  to  be  sheriff,  judge,  and  jury,  and  his  sabre  the  only 
process.  "  The  roar  of  the  cannon  will  be  its  eloquence,  and  powder 
and  ball  its  argument." 

The  enormity  will  appear  the  greater  when  it  is  considered  that  the 
courts  are  open  to  the  United  States,  and  if  it  claims  property  ad- 
versely held,  and  its  title  is  valid,  it  can  sue  and  dispossess  the  occu- 
pant after  a  fair  trial.  But  if  he  is  turned  out  by  violence,  he  can 
have  no  legal  investigation  into  his  claim  nor  any  redress  for  his 
injuries  because  the  United  States  is  not  liable  to  suit  in  any  court  of 
justice. 

The  undersigned  deems  it  just  to  himself  to  say  that,  for  reasons 
which  it  is  not  necessary  to  recount  here,  he  cannot  justify  and  will 
not  defend  the  conduct  of  the  seceding  States  in  taking  possession  of 
property  which  the  United  States  had  purchased  and  otherwise  ac- 
quired with  the  express  sanction  of  the  respective  States,  and  over 
which  they  had  the  faith  of  the  States  pledged  that  the  federal 
government  should  be  permitted  to  exercise  exclusive  jurisdiction. 

But  whilst  doing  justice  to  himself  by  this  explicit  declaration,  he 
must  also  be  permitted  to  do  justice  to  the  honorable  men  who  are  in 
the  councils  of  those  States,  by  reminding  the  House  that  the  authori- 
ties of  those  States  claim  that  by  the  act  of  secession  the  public  pro- 
perty affixed  to  the  soil  and  immoveably  within  their  territorial  limits 
legally  reverts  to  and  vests  in  the  State  governments,  respectively,  as 
the  only  remaining  sovereign  authority.  If  it  is  admitted  that  the 
effect  of  secession  is  to  extinguish  the  federal  authority,  the  claim  is 
valid.  Much  of  the  very  property  in  controversy  was  acquired  by  us 
by  the  application  of  the  same  principle.  For  instance,  at  the  time 
we  acquired  Florida  from  Spain  there  were  elaborate  and  costly  forti- 
fications at  Pensacola,  St.  Mark's,  and  St.  Augustine,  which  were  the 


4  MILITIA    OF    THE   UNITED    STATES. 

property  of  the  Spanish  government.  On  the  exchange  of  flags,  the 
new  sovereign  succeeded  to  that  and  all  other  public  property  as  the 
successor  of  the  former  sovereign.  Probably  there  is  not  a  seaboard 
State  of  the  Union  in  which  there  is  not  more  or  less  property  which 
the  United  States  acquired  as  the  successor  to  the  former  sovereign, 
that  former  sovereign  being  Great  Britain,  or  Spain,  or  France,  or 
Mexico.  It  may  be  said  that  in  most  of  those  cases  we  paid  for  the 
property.  That  is  true  ;  but  it  does  not  destroy  the  analogy  of  the 
cases.  When  Spain  had  yielded  the  sovereignty  over  Florida  to  us, 
a  claim  on  her  part  to  be  continued  in  possession  of  the  fortifications 
as  proprietor  would  not  have  been  listened  to  by  us  ;  indeed  it  would 
have  been  treated  as  an  irisult.  We  required  them  to  be  given  up  to 
us  as  her  successors,  and  paid  her  for  them.  So  the  seceding  States, 
claiming  as  they  do  that  the  sovereignty  has  been  changed,  assert  their 
right  to  have  possession  of  the  public  property  within  their  limits, 
especially  of  that  portion  of  it  which  is  purely  of  a  defensive  char- 
acter, and  which  has  no  value  or  significance  except  for  their  protec- 
tion. Not  claiming  it  as  a  conquest  or  by  right  of  the  strong  hand, 
they  have  unequivocably  expressed  their  willingness  to  pay  for  it  to 
the  uttermost  farthing  of  its  value  whenever  the  government  will 
entertain  negotiations  as  to  its  value. 

The  undersigned  is  rejoiced  that  this  government  has  thus  far 
kindly  but  firmly  refused  to  enter  upon  any  negotiation  looking  to  a 
permanent  separation,  and  hopes  that  course  will  be  adhered  to 
until  ample  time  has  been  given  for,  and  all  negotiations  have  been  ex- 
hausted looking  to  a  reunion  of  the  States. 

Whilst  the  undersigned  regrets  the  precipitate  action  of  the  se- 
ceding States  in  seizing  the  public  property,  and  pressing  for  an  imme- 
diate recognition  of  their  right  to  hold  it,  he  must  say  that  if  the 
violent  policy  proposed  by  this  bill  shall  be  adopted,  it  will  prove 
that  those  States  acted  wisely  in  making  the  most  ample  and  prompt 
preparations  to  defend  themselves,  and  in  trusting  in  no  degree  to 
the  forbearance  of  the  federal  government. 

If  the  undersigned  is  correct  in  his  statement  of  the  grounds  on 
which  the  seceding  States  have  taken  into  their  possession  the  public 
property  within  their  limits,  (and  he  does  not  doubt  that  his  statement 
will  be  admitted  to  be  correct,)  it  is  evident  that  the  act  was  the  neces- 
sary sequence  of  secession,  and  that  it  was  rightful  if  we  admit,  as  those 
States  claim,  that  secession  changes  the  sovereignty  over  the  property. 

All  the  seizures  made  have  been  of  real  estate  situated  within  the  ter- 
ritorial limits  of  the  State  making  the  seizure,  and  of  munitions  of  war 
which  might  be  used  against  them.  Tolargesums  of  money  in  the  hands 
of  public  officers  no  claim  has  been  made  ;  the  officers  being  allowed 
to  pay  it  over  to  the  federal  government  without  molestation. 

In  this  connexion  a  fact  is  worthy  of  notice  which  proves  the  sense 
of  honor  prevailing  in  those  States.  Many  of  their  citizens  holding 
commissions  in  the  army  and  navy  have,  from  a  sense  of  duty  and 
from  inclination,  resigned  ;  but  they  have  not  sought  in  doing  so  to 
inflict  injury  on  this  government  or  to  jeopardize  its  interests.  In  only 
one  instance  is  it  known  that  an  officer  has  failed  to  discharge  himself 


MILITIA   OF    THE   UNITED   STATES.  5 

of  his  trust  by  placing  the  property  committed  to  him  in  a  position  of 
security  before  resigning. 

In  none  of  its  features  is  the  secession  movement  predatory.  Con- 
fiscation has  nowhere  attended  it.  Those  engaged  in  it  have  seen  their 
private  fortunes  reduced  by  hundreds  of  millions  of  dollars,  but  they 
seem  to  have  submitted  cheerfully  to  the  sacrifice  in  maintenance  of 
what  they  believe  to  be  rights  essential  to  their  security. 

It  is  not  an  insurrection  against  the  laws,  but  a  withdrawal  from 
the  federal  government  of  all  right  to  make  laws  for  them  in  the 
future.  It  is  a  revolution  in  the  highest  sense  of  the  term,  conducted 
in  strict  conformity  with  the  representative  principle,  and  in  subordi- 
nation to  the  will  of  all  the  people,  expressed  in  due  and  legal  form. 
History  furnishes  no  instance  of  a  revolution  conducted  with  so  much 
regularity  and  order,  except  that  by  which  the  old  confederation  was 
broken  up  and  the  present  formed. 

It  would  be  trifling  to  single  out  one  of  the  smallest  incidents  of  such 
a  movement,  and,  by  making  it  prominent,  endeavor  to  escape  from 
looking  at  and  dealing  with  the  movement  itself. 

By  curing  secession  we  recover  the  public  property.  Will  we,  by 
recovering  the  public  property,  be  any  nearer  curing  secession  ? 

The  real  question  for  our  decision  is,  will  we  permit  the  secession 
of  a  portion  of  the  States  from  the  Union,  or  will  we  attempt  to  pre- 
vent it  by  military  power  ? 

If  we  intend  to  permit  it,  of  course  we  will  yield  the  forts.  If  we 
intend  to  prevent  it  by  force,  and  have  determined  that  we  will  not 
try  conciliation,  nor  give  time  for  palliatives,  then  let  this  bill  be 
enacted  into  a  law.  If  we  have  not  yet  determined  what  course  shall 
be  taken  in  the  emergency,  then  let  this  bill  be  rejected,  for  it  is  a 
declaration  of  war — instant,  stern,  ferocious. 

The  undersigned  having  fully  presented  his  views  in  regard  to  ma- 
king war  in  the  seceding  States  in  a  minority  report  which  he  pre- 
sented to-day  on  the  bill  "  further  to  provide  for  the  collection  of  the 
duties  on  imports,"  will  not  repeat  them  here. 

The  civilized  world  must  condemn  the  eager  desire  manifested  in 
some  of  the  northern  States  to  shed  the  blood  of  the  people  of  the  south. 
But  the  people  of  the  south  know  that  the  noisy  braggarts  who  vapor 
forth  their  own  courage,  and  parade  on  paper  armed  multitudes  who 
will  not  obey  them,  will  not  be  formidable  on  any  fair  field  of  battle. 

Though  such  a  spirit  under  a  temporary  frenzy  may  be  painfully 
widespread  at  the  north,  the  undersigned  will  not  believe  that  the 
bulk  of  the  sturdy,  religious,  civilized  people  of  those  States  expect 
or  demand  of  their  representatives  such  legislation  as  is  proposed  in 
Congress.  Let  us  bring  together  the  system  of  measures  proposed, 
(not  by  individual  members,  but  by  committees  representing  the  ma- 
jority of  Congress,)  that  a  judgment  may  be  formed  of  them  in  the 
aggregate. 

1.  By  a  bill  reported  from  the  select  committee  of  five  their  ports 
are  to  be  closed  to  all  foreign  commerce,  both  inward  and  outward,  so 
that  they  will  not  only  be  cut  off  from  all  supplies  from  abroad,  but 
they  will  be  unable  to  sell  any  portion  of  their  cotton  or  other  surplus 
productions,  provided  the  law  proves  effective  for  its  object. 


6  MILITIA   OF    THE    UNITED    STATES. 

2.  By  a  bill  reported  from  the  Committee  on  the  Post  Office  and 
Post  Roads  they  are  to  be  deprived  of  all  postal  facilities,  so  that  they 
cannot  communicate  with  the  rest  of  the  world  nor  with  each  other. 
This  great  instrument  of  civilization  and  social  happiness  is  to  be  en- 
tirely withdrawn  from  the  seceding  States. 

These  two  measures  will  entirely  isolate  them  from  others  and  from 
one  another  ;  and  that  fire  and  sword  may  complete  the  work,  we 
have — 

3.  The  bill  now  under  consideration. 

Bloodthirsty,  revolutionary  France  never  inflicted  a  worse  scourge 
upon  heroic  La  Vendee  when  it  left  to  its  inhabitants  no  alternative 
except  to  starve  or  to  die  nobly  on  the  battle  field. 

Who  can  doubt  that  these  cruel  measures  will  initiate  a  civil  war 
of  unsurpassed  barbarity,  in  which  quarter  will  neither  be  asked  nor 
granted  ? 

And  all  this  is  to  be  done  in  the  name  of  a  fraternal  Union,  and  to 
restore  alienated  affection. 

In  conclusion,  the  undersigned  will  express  the  hope  that  earnest 
efforts  may  be  made  to  redress  grievances,  restore  confidence,  and  re- 
establish the  Union  on  a  lasting  basis.  He  cannot  believe  that  such 
efforts  would  be  vain.  Whenever  the  hearts  and  minds  of  the  people 
are  right  for  reconciliation,  the  terms  of  reconciliation  can  be  easily 
arranged.  But  they  never  will  be  right  so  long  as  there  is  cultivated 
a  morbid  desire  for  revenge,  and  men  are  indulging  a  vain  and  idle 
belief  that  they  can  chastise  the  discontented,  and  compel  eight  or  fif- 
teen States  to  remain  in  the  Union  against  their  wishes. 

If  we  find  that  reconciliation  is  impossible,  and  that  the  States  can 
no  more  live  together  under  one  government,  let  us  separate  in  peace, 
and  form  other  and  more  satisfactory  arrangements.  The  object  of 
government  is  the  happiness  of  the  governed,  and  no  government 
ought  to  be  maintained  over  large  masses  of  mankind  which  does  not 
in  essentials  promote  their  welfare  and  happiness.  In  the  United 
States  it  cannot  be,  because  we  hold  that  governments  "derive  their 
just  powers  from  the  consent  of  the  governed ;  that  whenever  any  form 
of  government  becomes  destructive  of  these  ends,  [to  promote  the  wel- 
fare and  safety  of  the  governed,]  it  is  the  right  of  the  people  to  alter 
or  to  abolish  it,  and  to  institute  a  new  government,  laying  its  founda- 
tions on  such  principles,  and  organizing  its  powers  in  such  form,  as 
to  them  shall  seem  most  likely  to  effect  their  safety  and  happiness." 

All  our  institutions  rest  on  these  great  principles  ;  and  when  mil- 
lions of  people,  occupying  eight  States,  some  of  which  have  constitu- 
tions older  than  that  of  the  United  States,  with  a  unanimity  unparal- 
lelled  in  our  history,  and  very  far  exceeding  that  which  prevailed  in 
our  revolution,  declare  that  they  consider  the  existing  government 
destructive  of  their  happiness  and  dangerous  to  their  security  and 
prosperity,  and  that  they  intend  to  change  it,  it  is  idle  to  say  they 
have  no  right  to  do  so.  It  would  be  a  crime  against  the  principles  of 
our  fathers  to  marshal  armies  for  the  purpose  of  holding  them  in  sub- 
jection. 

The  undersigned  will  not  close  without  reminding  the  House  that 
the  act  of  March  2,  1833,  commonly  called  the  " Force  Bill,"  was  not 


MILITIA   OP    THE   UNITED    STATES.  7 

passed  by  Congress  until  a  bill  had  been  matured  and  passed  to  com- 
promise the  differences  which  had  placed  South  Carolina  in  an  attitude 
of  hostility  to  the  federal  government.  The  two  acts  stand  side  by 
side  on  the  statute  book,  approved  by  the  President  on  the  same  day. 
It  may  well  be  doubted  whether  the  statesmen  of  that  time  would  have 
enacted  the  law  if  it  had  not  been  known  that  there  would  be  no  occa- 
sion to  execute  its  provisions. 

L.  O'B.  BRANCH. 


